Legal action being taken against Prop 8

Again, at Concurring Opinions:

Are there good legal arguments for disregarding or undoing Prop 8? I don't know that there are.

One line of argument I've heard is that the proposition goes too far for an initiative. It makes big enough changes in the constitution -- affecting a fundamental right of a protected class -- that it would require more. But that very argument failed just a few months ago.

Another suggestion from a friend is that the proposition fails because it is inconsistent with other constitutional provisions. That seems to misunderstand the function of constitutional amendments. Where these are inconsistent with other provisions, they are typically intended to overrule those provisions. (I.e., the 13th amendment and the slavery provisions; or the Prohibition amendments.) As a matter of basic interpretation, I think that the reading one would give it is that to the extent that the Equal Protection clause required marriage to be extended to same-sex couples (Marriage Cases), that interpretation is now overruled.

And finally, the DailyKos speculation that the amendment may itself be unconstitutional is, I think, just crazy talk. The constitution cannot, by definition, be unconstitutional, can it? (Of course, it could be struck down if it was found to violate the U.S. constitution. I'm not holding my breath on that one -- I don't think there's any chance that the Roberts court would rule that way.)